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August 23, 2006
CHRISTIANS who were found to have vilified Muslims should not be banned from making statements that would be lawful by anybody else, two Court of Appeal judges suggested yesterday.
Discussing orders made against Christian pastors Danny Nalliah and Daniel Scot, Justice David Ashley said a judge could not restrain conduct that was lawful, and Justice Geoffrey Nettle questioned whether too much was expected of Pastor Scot.
The Victorian and Civil Administrative Tribunal ruled last year that the pastors and Catch the Fire Ministries vilified Muslims in a seminar, newsletter and article in 2002. They have appealed against the ruling and the remedy orders made by Judge Michael Higgins.
Debbie Mortimer, SC, for the Islamic Council of Victoria, said the Muslim side had sought a public apology and undertakings not to repeat the vilification, but the pastors had refused and said they did not recognise the findings or even the law on which they were based (the Racial and Religious Tolerance Act).
She said the tribunal gave the pastors another chance before ordering them to apologise in newspaper advertisements and granting the injunctions forbidding them from repeating the statements anywhere in Australia. She said the ban applied only to the two pastors.
Justice Geoffrey Nettle said: "Surely that can't justify restraining them from saying something that said by anyone else would be legal? In the case of the newsletter, for example, Pastor Nalliah says many churches have closed down. What's wrong with saying that?"
Ms Mortimer replied: "The tribunal has found there is something wrong with saying it. Truth is not a defence, it's irrelevant to contravention of the act."
Justice Ashley said so many of the statements were entirely innocuous and asked how the pastors could legitimately be restrained from making them. Ms Mortimer replied: "Because the tribunal found that when they made them they made them in a way that contravened the act." She said the comments had to be seen in the overall context.
Justice Nettle said that if she was right that only some comments from the seminar were banned, "a layman whose first language is not English (Pastor Scot, from Pakistan) is supposed to go through 140 pages of judgement and discern from that things he may not say on pain of contempt". Running seminars on Islam is Pastor Scot's occupation.
Ms Mortimer said he would have the same obligation under the vilification act, with no guidance. "There is a lot more guidance in this kind of order than the act provides."
Cameron Macaulay, barrister for the pastors, claimed that Judge Higgins made errors of law and that his orders were too wide, and questioned the constitutional validity of the act.
Solicitor-General Pamela Tate said the case did not come under the implied constitutional right to free speech because that right applied only to political and governmental matters.
Justices Nettle, Ashley and Marcia Neave reserved their decision.
Original piece is http://www.theage.com.au/articles/2006/08/22/1156012542812.html